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  JUDICIAL SYSTEMS
Evaluation scheme

The assessment of court quality: a breach of the independence of the judiciary or a promising development?

Pim Albers,
Special advisor CEPEJ
Council of Europe

1 Introduction

In the private sector there is a continuous awareness of the need for quality improvement and quality measurement of the delivery of goods and services. As a part of the market principles many companies are seeking for the best product and ultimate satisfied customers. The attention for quality was not at all times high on the agenda in companies. The main idea of quality-thinking derived back to the ’50ties when the management boards of Japanese companies recognised the importance of changing the negative image of the products into a positive one by introducing a quality policy. It was Feigenbaum who introduced the term ‘total quality control’ in 19511. Total quality control is defined an “effective system for integrating quality development, quality maintenance, and quality improvement efforts of the various groups in an organization to enable production and service at the most economical levels which allow full customer satisfaction”. At a later stage (period 1980 – 1990) the term total quality control was replaced by principles of total quality management (TQM). In a reaction to the quality revolution in Japan the United States introduced this concept for the first time at a US Naval Aviation Depot. Rather relying purely on product inspection, in the TQM approach it is necessary to focus on all relevant aspects of an organization and organizational processes. To encourage quality improvement further and to underline the importance of quality thinking for the US national economy the Congress adopted in 1987 a special Act for the creation of the Malcolm Baldridge National Quality Award2. The purpose of this act is “to provide for the establishment and conduct of national quality improvement program under which (1) awards are given to selected companies and other organizations in the United States that practice effective quality management and as a result make significant improvements in the quality of their goods and services and (2) information is disseminated about successful strategies and programs” (Section 2 (b) purpose). From 1988 to current many organizations, varying from small businesses to public sector (healthcare, education, etc), received the award for their achievements in the area of quality3. Four years later a comparable initiative was launched in Europe with the introduction of the European Foundation on Quality Management model (EFQM). The EFQM excellence model can be used by organizations to: assess, to benchmark with similar types of organizations and to improve their level of quality. The model is based on the principle that “excellent results with respect to Performance, Customers, People and Society are achieved through Leadership driving Policy and Strategy, that is delivered through People, Partnerships and Resources, and Processes”4. As is the case with the Malcolm Badridge Quality Award, an organization is yearly awarded for the achievements made in the field of quality.
In addition to these two ‘quality award’ approaches several other quality concepts and techniques has been developed over the past years. Examples are the Six Sigma Model, focusing on the elimination of ‘defects’ in the product of services or goods, the Balanced Scorecard Principle5 and Quality Management Systems (ISO).

As far as the private sector and some parts of the public sector concerned the notion of quality belongs to the core values of how companies or organizations are run. The needs and wishes of clients are in the center of importance, when it comes to the determination of the quality. What about a specific part of the public sector: the judiciary? Is there a similar trend and history in quality thinking visible or are we just at the beginning? In this article the main trends and developments in the judiciary at a global level and regional levels are described. Before I start with illustrating examples of quality approaches and quality systems I will shortly introduce the concepts of ‘judicial quality’ and ‘court quality’.

2 Judicial quality and court quality

In many legal studies the quality of the judiciary is related to decisions made by judges and the possibility to appeal these decisions. Also the existence of a High Court, Supreme Court and/or Constitutional Court must be seen in the light of judicial quality. These high level courts form a guarantee for a high quality judicial decision making process, where there exist the possibility to correct legal errors made by judges and to protect the unity of law i.e. the fact that similar cases are decided in a similar manner. However, judicial quality is not only limited to the quality of the decisions or the existences of appeal and higher courts. It is also brought in relation to the notion of independence of the judiciary. Guarantees for independence are connected with the recruitment and nomination of judges, their terms of office, the remuneration and the freedom to decide in the courtroom without direct influence from the executive or legislative power.
For a long time quality was only seen in the light of judicial quality. It did not take into account other aspects that may influence the quality of the administration of justice. As was the case with the development of quality models and quality systems in the past for companies the perspective on quality was limited to the final quality of the product or services or in judicial terms: the quality of the decision rendered by the judge. A client perspective or other notions that can be related to the quality of courts were for many years not taken into account when it comes to the determination or improvement of the quality in the judicial field. Nowadays, there seems to be a trend that in certain parts of the world a wider notion on quality is appearing as a result of a growing number of countries which are developing integral quality systems for courts. This trend started in the United States with the creation of the Trial Court Performance Standards (TCPS).

3 US Trial Court Performance Standards

In 1983 the Conference of State Court Administrators of the United States and separately in 1987 the American Bar Association published case processing time standards for the courts. It was the first recognition of the need to be accountable and responsive to the public demands for a proper case management. 1987 was also the year that a commission of leading trial judges, court managers and (legal) scholars took the initiative to develop a measurement system for enhancing the ability of US State Courts to provide fair and efficient adjudication and disposition of cases. This initiative resulted in the Trial Court Performance Standards (TCPS)6. TCPS articulates the fundamental purposes of courts and provides a tool for the community of courts to discuss with each other and with the environment of the courts the quality of the services delivered by the court. In the system 68 measures for 22 standards are identified within a framework of five areas, connected with the fundamental purposes and responsibilities of courts. These areas are:

To check the feasibility of TCPS it was tested in twelve courts. For the collection of data different methods were used (observations and simulations, structured interviews and focus groups, case and administrative record reviews, surveys and appellate court performance standards). Despite the fact that the system was endorsed by many trial courts in the United States, experiences showed that the self-assessment of the courts - by making use of all the 68 measures and 22 standards - was difficult to realize. Only a very limited number of courts, for example the Los Angeles Municipal Court (in 1996), were able to evaluate all the 68 measures8. Schauffler (2007) explained in his article that several factors contributed to the inability of state courts to institutionalize the TCPS system. First of all the number of 68 measures was too great and too complex. Secondly, the courts’ information systems were not originally designed for the data that was necessary to provide the information for TCPS. Thirdly, due to an improvement of the economic climate in the United States the need to invest in performance measurement declined. Fourthly, as a result of the institutional separation of the judiciary from other branches of government the pressure to adopt performance measures in the courts were reduced and lastly, a lack of consistent leadership in the courts for drawing attention to the need for implementing performance measurement systems9 lead to a decreasing attention to TCPS.
A ‘revival’ of the quality approach seems to appear when in 2005 the Courtools where published. These tools, a list of 10 practical measures, are based on the integration of the major performance areas defined in TCPS with general quality models such as the Malcom Baldridge Quality Award and the Balanced Score card10. The measures/indicators are: (1) access and fairness, (2) clearance rates, (3) time to disposition, (4) age of active pending caseload, (5) trial data certainty, (6) reliability and integrity of case files, (7) collection of monetary penalties, (8) effective use of jurors, (9) court employee satisfaction, and (10) costs per case. In 2008 the list 10 practical measures is connected with each other through the development of a ‘framework for court performance measurement’ by the US National Center for State Courts. In this framework the measures/indicators are arranged in four quadrants (comparable with the balanced scorecard): effectiveness (measures 5, 7 and 8), procedural satisfaction (measure 1), efficiency (measures 2, 4 and 6) and productivity (measures 3 and 10). For the quadrants ‘procedural satisfaction’ and ‘productivity’ the framework for court performance includes two new indicators: transaction time, respectively value added time (actual time spends on a case). The essence of the framework is that adequate operating courts are scoring ‘good’ in all four quadrants. It must be noted that, in contrast with the court tools, the framework for court performance is still in the development phase11.

4 European initiatives

In the beginning of the nineties initiatives were undertaken in Europe to improve the public services of governmental institutions. This resulted in the United Kingdom in the creation of so-called ‘Citizens charters’. The former UK Prime Minister John Major promised in 1991 better quality for consumers through the publication of service standards and specific rights for consumers of public services. The most successful providers of public services were/are awarded with ‘charter marks’12. Specific citizen’s charters were also available for the justice sector. For example in UK-Scotland a justice charter was released at the end of the same year. As a part of this charter standards of court services were introduced, access to justice was improved, special attention were given to specific categories of users (witnesses, jurors, children, victims), information published on the reduction of delays and monitoring mechanisms were implemented in measuring the progress in court proceedings13. In 2003 a similar idea was introduced by the French Government under the name ‘Charte Marianne’14. This charter is also meant to improve the access to public services, a client friendly approach to citizens, a possibility to file a complaint and a quick response to the request of the citizen for the delivery of public services.
The notion of the importance to take the needs and wishes into account of the users of the courts and not to limit the quality of administration of justice to judicial quality was recognised by other European countries as well. For example in Switzerland (Kanton Genčve) a report (1996) was published on the quality of the courts, based on the results of a customer satisfaction survey under the group of lawyers. In the years 1997 and following the survey was extended to other court users (citizens) and notaries15.
A more comprehensive approach towards court quality can be found in the Netherlands. As a part of a large reform program of the Dutch Judiciary (Administration of Justice in the 21st Century) a project Quality (1999) was initiated. The main aim of this project was to develop a measurement system for the courts which made it possible to assess court quality and to define areas of improvement. Based on the experiences with the US Trial Court Performance Standards such a system was developed in a three-year period. Comparable with the main elements of TCPS five areas of measurement were defined:

Table 1 Core values of a court (Source: framework of court excellence (2008), p. 8)

equality (before the law)

integrity

fairness

transparency

impartiality

accessibility

independence of decision making

timeliness

competence

certainty

Table 2 Areas of measurement in the framework of court excellence

Court management and leadership

User satisfaction

Court policies

Court resources

Court proceedings

Affordable and accessible court services

Public trust and confidence

 

With respect to the assessment of court quality a list of indicators has been defined for each of the seven areas of measurement. This list can be used by the courts to evaluate the current state of affairs. To facilitate the process of assessment a plan of action (steps to be taken to implement the framework, to conduct the assessment and to use the results for improvement of the court performance and quality) and a self-assessment questionnaire is included in the framework report. The main aim of the questionnaire is to search the strength and weaknesses in the court organization. If needed or requested, the framework contains also a scoring mechanism. Courts can use the scoring method to see how far they are on their journey towards court excellence. Results of different assessments (including the scoring results) may be used in the future to set op a national or international court quality benchmarks and to identify a court that has achieved the highest level of court excellence and made the largest improvements concerning the quality of services delivered in the world.
In addition to the remarks on the scoring mechanism, it must be noted that the authors underlined that there are multiple trajectories towards court excellence. The framework is developed in such a way that it is flexible. Courts can follow different tracks of improvements, sequence reforms differently, select other priorities and choose among the various available tools to achieve their goals32. The hypothetical last phase of the trajectory towards excellence shows what an ideal court look like if it fulfills all the quality requirements that are necessary for an optimal court performance and a high level of satisfaction of the users of the court.

7 Concluding remarks

Almost sixty years ago a quality approach was introduced in Japanese companies. At a later stage enterprises in other parts of the world followed this initiative. General quality models were developed and quality awards were given to excellent companies. Nowadays the orientation towards user satisfaction, quality measurement and quality assurances is a common part in the management policy and strategy of companies.
A growing interest for the user became apparent in the public sector when a certain number of countries introduced quality or customer charters at the beginning of the nineties. It was also the same period that in the United States quality was introduced in the courts, as the result of the creation of the trial court performance standards. After national or regional initiatives in other parts in the world (Europe and Australasian region) concerning the development and implementation of quality activities or comprehensive quality systems for the courts, we are now at the beginning of a new phase: the journey towards court excellence. With a framework for court excellence in our hands, it will be possible for courts in all parts of the world to start with quality initiatives, to assess the level of quality in the courts and to improve court performance. It is expected that this framework will contribute to several quality improvements in the judiciary, with concrete benefits for the users of the courts. In the long run it may even lead to, similar to the Malcolm Baldridge Quality award, the creation of a new global quality award: “the Global Court of Excellence Award”. As a tool for promotion and stimulating quality improvements in the courts this award may be given to courts where major achievements have been realized in the area of quality and where courts have followed the trajectory towards court excellence.


1 Feigenbaum, A. V. (1951), Quality Control: Principles, Practice, and Administration, McGraw-Hill

2 Malcolm Baldrigde National Quality Improvement Act of 1987.

3 http://www.baldrige.nist.gov/Contacts_Profiles.htm.

4 http://www.efqm.org/Default.aspx?tabid=35.

5 http://www.balancedscorecard.org.

6 http://www.ncsconline.org/D_Research/tcps/index.html.

7 In 1995 a similar system was developed for the appellate courts: the Appellate Court Performance Standards.

8 Ingo Keilitz, Standards and Measures of Court Performance. In: Criminal Justice (2000 vol. No. 4), p. 581.

9 Richard Y. Schauffler, Judicial accountability in the US State Courts measuring court performance. In: Utrecht Law review, Volume 3, Issue 1 (June) 2007, p. 120.

10 http://www.courtools.org.

11 US National Center for State Courts (2008), A unifying framework for court performance measurement, Washington.

12 http://www.cabinetoffice.gov.uk/chartermark.aspx

13 The Scottish Office and the Crown Office, Scottish Courts Administration (1991), Justice Charter.

14 French Republic (2003), Charte Marianne: pour un meilleur accueil, Paris.

15 http://www.geneve.ch/tribunaux/pouvoir-judiciaire/vie-judiciaire/enquetes/welcome.html.

16 Ministry of Justice Finland (2005), Quality projects in the courts of the jurisdiction of the court of Appeal of Rovaniemi. Court of Appeal of Rovaniemi (2006), How to assess quality in the courts.

17 See: http://www.coe.int/cepej. Special file ‘crystal scales of justice’.

18 European Parliament (2004), Working document on the quality of criminal justice and the harmonisation of criminal legislation in the Member States, Brussels.

19 See the website of the CEPEJ for the reports (http://www.coe.int/cepej).

20 It must be noted that e-justice is high on the agenda of the European Union. Initiated by the Council of the European Union and supported by the European Commission a European e-justice web portal will be build to facilitate access to justice in cross-border disputes for citizens and legal professionals.

21 CEPEJ-GT-QUAL (2007)9Rev, Quality of the judiciary and courts (a checklist), Strasbourg.

22 http://www.encj.eu/encj/

23 The quality activities that are identified in the report are: (1) mission, vision and strategy, (2) total quality systems, (3) leadership and management, (4) complaints procedure, (5) peer review, (6) processins time and working procedures, (7) training, (8) quality assessment and judicial quality, (9) staff evaluation, (10) client evaluation, (11) management information, auditing and reporting and (12) external communication.

24 European Network of Councils for the Judiciary (2008), Quality Management.

25 Singapore Subordinate Courts (2007), Case Study: the Subordinate Courts of Singapore a journey of excellence, Singapore.

26 The methodology of the scorecard is derived from the Balanced Scorecard method.

27 The Singapore Quality Award institutionalises the highest standards of business excellence and is based on the standards laid down in the US Malcolm Baldridge National Quality Award, the European Foundation on Quality Management (EFQM) and the Australian Business Excellence Award.

28 Framework for Court Excellence (2008), p. 47.

29 The author was member of the project team and contributed to the development of the Framework.

30 The framework for court excellence was launched at an international “Quality forum” conference in Sydney - Australia (21 –23 September) organized by the Australasian Institute of Judicial Administration. Further information can be found at the website of this institute (http://www.aija.org.au/) or the website of the US National Center for State Courts (http://www.ncsconline.org/).

31 Framework of court excellence (2008), p. 10.

32 Framework for court excellence (2008), p. 36.